Crim 2p33 start-test 1
The Ubiquity of Laws
- The myth of a free society - the limits of our rights and freedoms are clearly defined by law (charter of rights and freedoms, COVID mask mandate
- Our entire life is regulated by law - what we eat, type of entertainment we can access etc
- Laws control every aspect of our lives because of our preoccupation with order
Social Contract Theory
The idea that governments have and wield legitimate authority, and that the consent of the people is the basis of the legitimacy of any government
Thomas Hobbes
English philosopher, book; the levithan
Focus: on the conditions necessitating the establishment of government (and of laws and other apparatuses of the state)
Summary of Hobbes' position
Human beings are naturally selfish; and if unrestricted, would pursure their own gratifications possible; and at the expense of others
- State of nature:
· Individuals enjoyed absolute personal freedom, with all its abuses and perils
· Need for a social contract and a “leviathan” (I.e. a common power/authority/government) to make and enforce rules; and thus, maintain order and security for all
Jean-Jacques Rousseau
- Criticized Hobbes' depiction of the state of nature as nasty and full of conflicts
- argues that man, rather, was a noble savage, uncivilized but naturally good and was living in peace with others
- This peaceful existence was disrupted by human advancement and private property
- need of government emerged
Objective of Laws in Society
- Ultimate objective of laws in society is social control
- The goal of social control is the maintenance of social order (as defined by the dominant class or group in society)
- Natures of laws go along with values
Civil Disobedience
- The concept of civil disobedience is often used to protect existing authority rather than express citizen morality and bring about necessary changes in government.
- Civil disobedience is not a collective action aimed at removing unjust conditions, but rather a moral stance against supporting the government's actions.
- There is a distinction between dissent (verbal expression of difference of opinion) and civil disobedience (refusal to obey government
Consensus Prospective
- Emphasizes social order, integration, stability and functionalism
- Laws promote and sustain social order/stability
- Law is created through value-consensus
- Law is impartial and protects us equally
- Laws promote public good, not private interest
* all summarized in social contract theory *
Conflict perspective
- Emphasizes conflicts, contradictions and dissensus (different groups with different values and interests, held together only through legal coercion
- Laws are used to enforce social inequality
- Powerful groups or class dictate that nature of laws
- Law is an instrument of coercion and repression
e.g. marxist, feminist legal theory, and critical race theory
Views of law as a social weapon (marx, fls, crt)
Marxist - law is an instrument of class struggle
Critical race theory - law is an instrument of racial domination
Feminist legal theory - law is a patriarchal instrument for the domination of women
- Law continues to be used as a tool of oppression, of social control
Social contract theory
John Locke
- Attempt to combat the dominant ideas of his time, the idea that the king has the right to rule the kingdom
- Governments exist for the mutual preservation of lives, liberties and estates
- In the absence of a government, the state of war may degenerate into a state of perpetual war
- Retaliation might become disproportionate
- Social contract is therefore necessary to manage conflicts
Why government is necessary (John Locke arguements)
- Disputes over property (private property)
- When one steals from another
- When one tries to ensalve another
The Racial Contract (Charles W. Mills)
- A critique of the social contract theory
- in contrast to social contract, state power derives from racial contract which privileges white people, legalizes their seizure of state power and permits them to oppress and exploit non-white populations
- therefore racism is not accidental but is deliberately designed in the organization of state power, and in the normalization of white supremacy
4 Styles of Social Control
Penal style: seeks to exert punishment for violation of the law (crimes)
Compensatory style: seeks to remedy/compensate for a violated contractual obligation
Therapeutic style - seeks to provide therapy (treatment) to someone in conflict with the law… probably as a result of diminished responsibility (e.g. through the use of psychiatrists)
Conciliatory style - seeks to resolve conflict without consideration of who is right or wrong. E.g mediation for marital disputes/divorce
Power (Karl Marx)
- Determined by ones relationship to the means of production & distibution
- Embedded in the social structure (i.e. class structure)
- Invovles class conflict (not conflict between individuals)
- People who control the mechanisms of our lives have dominant control of things like politics and rules